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USMC | DRB | 2000_Marine | MD00-01076
Original file (MD00-01076.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-PVT, USMC
Docket No. MD00-01076

Applicant’s Request
The application for discharge review, received 000328, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010808. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. Unusually high stress in my life due to holding 14 billets at one time along with personal life stress of discovering inability to have children and talk of ending marriage-was scheduled for day off-it was revoked-anger added to stress and made a judgement error.

2. After incident, investigation was performed by NIS at residence. NIS found case only warranted officer hours, case closed. LtCol not being satisfied with NIS findings demanded court martial.

3. Presiding judge and prosecuting attorney changed day of Court Martial. Presiding judge at Court-Martial prejudged before hearing any facts. Judged me based on case he just completed claiming we were partners in crime. My counsel challenged judge's ability to preside fairly and impartially. Judge dismissed his own challenge and proceeded with the Court-Martial.

4. Final outcome of Court Martial and discharge has made my life quite difficult. It was a catalyst in the ending of my marriage and has made it impossible to get a decent high paying job.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Family to Commandant of the Marine Corps (3pgs)
Partial Letter to Appellate Defense Counsel (2pgs)
Request for Clemency from Captain J. A. N___
Applicant's Clemency Request
Excerpts from Court-Martial (34pgs)
Character Reference Letters (16)
Police Record Check Letter
Certificate of Appreciation
Copy of DD Form 214
Copy of Character Reference Letter from Assistant Aviation Colonel's Monitor (4pgs)
Copy of Statement of Observation from First Lieutenant, USMCR
Reference Letter from Co-worker

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                900125 - 901119  COG

 Period of Service Under Review :
Date of Enlistment: 901120               Date of Discharge: 971120

 Length of Service (years, months, days):

         Active: 06 11 16
         Inactive: None

 Age at Entry: 18                          Years Contracted: 6

 Education Level: 12                        AFQT: 77

 Highest Rank: Cpl

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.4 (11)                      Conduct: 4.3 (11)

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, GCM, AFEM (Op Restore Hope Somalia, JMUA

Days of Unauthorized Absence: None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

BAD CONDUCT DISCHARGE/COURT-MARTIAL, authority: MARCORSEPMAN Par. 1105.

 Chronological Listing of Significant Service Events :

920114:  Counseled for deficiencies in performance and conduct. [Concerning the improper use of a calling card which did not belong to him.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

920916:  Counseled for deficiencies in performance and conduct. [Regarding the necessity for obedience to orders and proper use of the chain of command] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.
950228:  Special Court-Martial.
         Charge I: violation of the UCMJ, Article 92: Willfully failed to safeguard all mail matters in the command mail room on 941029;
         Charge II: violation of the UCMJ, Article 121: Did steal several pieces of mail, the property of the Marines from 3dBn 4thMar on 941019; Charge III: violation of the UCMJ, Article 134: Did wrongfully open, secret, and steal certain mail matter, the property of 3dBn 4thMar on 941019.
         Findings: to Charge I and specification 1 thereunder, guilty. To Charge II and specification thereunder, guilty. To Charge III and specification thereunder, guilty, except for the words, "two pieces of mail". To the excepted words, Not Guilty.
         Sentence: Confinement for 50 days, reduction to E-1, and a bad conduct discharge.
         CA 950619: Sentence approved and ordered executed except for the BCD, but the execution of that portion of the sentence adjudging confinement is excess of 15 days is suspended for a period of 12 months from the date of trial, at which time, unless sooner vacated, will be remitted without further action.
        
950228:  To confinement, Sentence of SPCM.

950312:  From confinement, to duty.

950913:  NC&PB denied clemency and restoration.

960617:  To appellate leave.

970307:  COMA: Petition for review granted

970806:  NMCCMR: Affirmed findings and sentence.

971120:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 971120 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, affirmed in the legal chain of review and executed (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to the applicant’s issues, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based only on clemency. (B, Part IV) The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. In addition to the applicant’s service record, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV). However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered. The applicant provided one character reference, a police records check and a letter of appreciation for a blood donation as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record and more documentation of community service in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 1105, DISCHARGE ADJUDGED BY SENTENCE OF COURT-MARTIAL , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 950818 until present.

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 121, larceny.
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls10.jag.af.mil ”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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